Parsons v Neuman

[*1] Parsons v Neuman 2006 NY Slip Op 50957(U) [12 Misc 3d 1159(A)] Decided on May 23, 2006 Nassau Dist Ct Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2006
Nassau Dist Ct

Donna Parsons, Plaintiff,

against

Peter R. Neuman and Nassau Plastic Surgical Associates, P.C, Defendants.



32796/03

Randy Sue Marber, J.

Defendants move, pursuant to CPLR §3212, for an Order granting them summary judgment dismissing plaintiff's complaint. Plaintiff opposes said motion.

This is a contract action claiming unjust enrichment arising out of a contract for cosmetic surgery between the parties dated May 16, 2003. Plaintiff cancelled the surgery less than 48 business hours before the surgery was scheduled to begin. Pursuant to the contract, cancellation must be made 48 business hours before the surgery for refund of the surgical fee. Defendants are retaining $9,750.00 paid to them by plaintiff. Defendants claim that they were not unjustly enriched, as they could not re-schedule another patient in plaintiff's time slot at the last minute and therefore lost more money than plaintiff had prepaid them.

In support of their motion, defendants submit an affirmation of their attorney, copies of the pleadings herein, photocopies of plaintiff's executed examination before trial transcript, and defendant Peter R. Neumann's executed examination before trial transcript.

In the affirmation in support of defendants' motion, Attorney Klotz relies on the financial policy of defendants provided to plaintiff, from which she quotes: "48 hours notice, during regular business hours, is required for refund of surgical fee if cancellation is not due to a medically documented reason." Plaintiff claims to have issued two checks, one payable to defendant, Neumann, for $9,750 and one payable to the anesthesiologist for $1,500. Plaintiff stopped payment on the anesthesiologist's check, which defendants claim they covered. It is claimed that plaintiff was cleared for surgery, referring the [*2]Court to defendant Neumann's EBT transcript, p.41, lines 2- 4. However, a reading of that cite does not confirm defendants' statement.

Plaintiff allegedly telephoned defendants' answering service on Sunday night, July 6, 2003 cancelling her surgery scheduled for Tuesday morning, July 8, 2003 at 7:30 a.m. Plaintiff had been scheduled for multiple surgeries on July 8th, to wit: a lower face/neck lift and an endoscopic brow lift. She states in her opposition affidavit that she cancelled the brow lift surgery on July 3, 2003 and was advised that she would be reimbursed for "a little more than $2,000 and that the anesthesia fee would be reduced from $1,500 to $1,000." Plaintiff claims that later that day she checked with her primary care physician with regard to his pre-surgical examination and was advised that her cholesterol was high normal and her triglyceride level was 367 while normal was 150. Defendants' office was closed the following day (July 4th) and also on July 5th and July 6th (Saturday and Sunday). Thus, she was unable to relay her concern about her cholesterol findings to defendants within the 48 business hours before the scheduled surgery.

In his deposition, defendant, Neumann, testified that he was not advised that the brow lift had been cancelled on July 3rd until he was told the entire surgery was cancelled on "Monday some time in the afternoon" (p.42, lines.5-6). Defendant stated that if he had not seen a surgical exam report in his office prior to the date of surgery, he would not have conducted the surgery (p.38, lines 7-10). In response to a question as to whether he had any pre-surgical exam information furnished to him by any other physician in his file, defendant, Neumann, responded that he did not (p.37, lines 8-10).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]) and even in the absence of opposing papers. A motion for summary judgment shall be supported by an "affidavit by a person having personal knowledge of the facts", shall recite all the material facts and it shall show that there is no defense to the cause of action or that the defenses have no merit (CPLR §3212[b]). While there is no affidavit by defendant, the Court may consider his executed deposition transcript, and does so on this motion. Once the moving party meets his burden, the burden then shifts to the non-moving party to allege such evidentiary facts that raise a genuine and material controversy as to the issue(s) before the Court. Where the opposing party fails to meet his burden and the Court finds no triable issues, the motion will be granted (Iandoli v. Lange, 35 AD2d 793 [1st Dept 1970]). Where the Court determines that a triable issue of fact exists, denial of the motion is the proper course of action (Moskowitz v. Garlock, 23 AD2d 943 [3d Dept 1965]).

The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and determine whether there is any triable issue of fact outstanding (see, Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d 178, 182, 630 NE2d 636, 608 NYS2d 940 [1994]; Simpson v. Simpson, 222 AD2d 984, 986, 635 NYS2d 346 [3d Dept 1995]; Boyce v. Vazquez, 249 AD2d 724, 725, 671 NYS2d 815 [3d Dept 1998]). [*3]

The Court finds that there are numerous questions of fact as to whether defendants are entitled to retain any or all of the monies paid by plaintiff. There is a question as to whether defendants would have proceeded with the surgery at the scheduled time even if plaintiff had not cancelled. Defendant, Neumann, states in his deposition that he would not have conducted the surgery at all without a pre-surgical medical examination report, which he did not have. Also, he was not aware that plaintiff had timely cancelled the brow lift surgery, which would have shortened his required surgery time, until the afternoon before the scheduled 7:30 a.m. surgery, when he learned that she had cancelled the remainder of the surgery. In addition, plaintiff has raised other issues with regard to defendants' compliance with the contract. These are questions of fact that must be resolved at trial.

Accordingly, defendants' motion is denied and the case shall be restored to the trial calendar and the clerk shall advise the parties of the date thereof.

So Ordered:

Dated: May 23, 2006

DISTRICT COURT JUDGE

CC: Kelly, Lucas & Pacifico, LLP

Lewis, Johs, Avallone, Aviles, LLP